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Colondres v. Davis

United States District Court, E.D. California

February 22, 2018

DANIEL LUCAS COLONDRES, Petitioner,
v.
RON DAVIS, Respondent.

          FINDINGS & RECOMMENDATIONS

          ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent's motion to dismiss the petition as untimely. ECF No. 12.

         I. Factual and Procedural Background

         Petitioner was convicted of attempted first degree murder on March 29, 2013. ECF No. 1 at 6. He filed a petition for review in the California Supreme Court which was denied on November 12, 2014. Id. at 7; ECF No. 12 at 3. He did not petition the United States Supreme Court for certiorari or file any petitions for collateral review in state court. ECF No. 1 at 7. The instant petition was filed on May 19, 2016.[1] ECF No. 1 at 64.

         II. Motion to Dismiss

         Respondent moves to dismiss the petition as untimely. ECF No. 12. He argues that petitioner had until February 10, 2016, to file a petition in federal court and that petitioner is not entitled to any statutory tolling because he did not file any state habeas petitions. Id. Since the federal petition was not filed until May 19, 2016, it was untimely and is therefore barred.

         Petitioner opposes the motion, largely arguing the merits of his case. ECF No. 13. However, petitioner also states that he already set forth the reasons for his untimeliness in his petition and that the untimeliness should be excused. Id. at 1. In the petition, petitioner clearly asserts that he is entitled to equitable tolling, though he does not use that term. ECF No. 1 at 12-13. Specifically, he argues that his late filing should be excused because counsel told him it would take approximately eighteen months for his criminal appeal to be resolved and then failed to notify him when the California Supreme Court denied his petition for review on direct appeal. Id. Petitioner states that he did not discover that his petition for review had been denied until after the one-year statute of limitations had expired, at which point he attempted to determine why he had not been notified of the court's decision and filed the instant petition. Id. at 2.

         In reply to the opposition, respondent rested on his motion to dismiss. ECF No. 14.

         III. Statute of Limitations

         A. Commencement of the Limitations Period

         Section 2244(d)(1) of Title 28 of the United States Code contains a one-year statute of limitations for filing a habeas petition in federal court. This statute of limitations applies to habeas petitions filed after April 24, 1996, when the Antiterrorism and Effective Death Penalty Act (AEDPA) went into effect. Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). The one-year clock commences from one of several alternative triggering dates. 28 U.S.C. § 2244(d)(1). In this case, the applicable date is that “on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

         In this case the California Supreme Court denied direct review of petitioner's conviction on November 12, 2014. ECF No. 1 at 7; ECF No. 12 at 3. The record shows petitioner did not submit a petition for writ of certiorari to the Supreme Court of the United States. ECF No. 1 at 7. Accordingly, his conviction became final at the expiration of the ninety-day period to seek certiorari immediately following the decision of the state's highest court. Clay v. United States, 537 U.S. 522, 528 n.3 (2003); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). The conviction thus became final on February 10, 2015, and ADEPA's one-year clock began to run on February 11, 2015. Patterson v. Stewart, 251 F.3d 1243, 1247 (9th Cir. 2001) (the day order or judgment becomes final is excluded and time begins to run the day after the judgment becomes final (citing Fed.R.Civ.P. 6(a))). Absent tolling, petitioner had until February 10, 2016, to file a federal habeas corpus petition.

         B. Statutory and Equitable Tolling

         The limitations period may be statutorily tolled during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). An otherwise untimely habeas corpus petition may also be found timely if the ...


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